Chevron Phillips Chemical Company, L.P. v. abay chidi
Claim Number: FA2007001905376
Complainant is Chevron Phillips Chemical Company, L.P. (“Complainant”), represented by John C. Cain of Fleckman & McGlynn, PLLC, Texas, USA. Respondent is abay chidi (“Respondent”), Indonesia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cpchemi.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 22, 2020; the Forum received payment on July 22, 2020.
On July 23, 2020, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <cpchemi.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the“Policy”).
On July 23, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 12, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@cpchemi.com.
Also on July 23, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On August 17, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant claims rights in the CPCHEM trademark based on its trademark registrations listed below, and its long and extensive use of the mark as a trademark and service mark in the petrochemical and energy industries.
Complainant submits that since 2001 it has used the word mark CPCHEM around the world and has built a substantial international goodwill and reputation in the mark and its products and services as a global enterprise employing over 5,000 people and having assets in excess of USD $14 billion.
Complainant submits that the disputed domain name is confusingly similar to its CPCHEM mark, arguing that minor differences between a domain name and a trademark are insufficient to avoid confusion and the disputed domain name differs by only a single letter from Complainant’s trademark and domain name <cpchem.com>, adding a single letter “i”. See, e.g., AB Electrolux v. Piotr Pardo, Case No. D2017-0368 (WIPO May 8, 2017) (“The Panel agrees with Complainant that <electrolvx.com> is comprised entirely of Complainant’s registered ELECTROLUX mark with the only difference being the replacement of the letter ‘v’ by the letter ‘u’”).
Complainant submits that Respondent has no rights or legitimate interests in the disputed domain name arguing specifically that:
• Complainant has used its CPCHEM mark since at least as early as 2001, long before any use of “CPChem” or “cpchemi.com” by Respondent;
• Complainant obtained U.S. registration of its CPCHEM mark in 2005, prior to any relevant use by Respondent;
• Complainant has not licensed or otherwise authorized Respondent to use the CPCHEM mark;
• the WHOIS database indicates that Respondent did not register the disputed domain name until June 15, 2020;
• there is no evidence of any other use of “CPChem” or “CPChemi” by Respondent;
• Respondent is not in any way affiliated with Complainant;
• Respondent registered the disputed domain name without Complainant’s knowledge or permission;
• Respondent registered the disputed domain name on the same day that one of its customers started to receive fraudulent emails using the disputed domain name address. In this regard, Complainant refers to copy documents exhibited in an annex to the Complaint which shows that on June 15 and 16, 2020, an unknown person posing as an employee of Complainant sent an email, using the disputed domain name as an address, to one of Complainant’s customers stating that there was a problem with a recent payment and there were unpaid overdue invoices. In subsequent emails the fraudster sought to defraud the customer by directing the customer to call a telephone number unaffiliated with Complainant stating that their legitimate payments were not properly processed.
Complainant submits that these facts are more than sufficient to make a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name.
Furthermore, Complainant submits that Respondent did not use the disputed domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services. The disputed name is inactive, and there is no evidence that Respondent has used, or has made demonstrable preparations to use, the disputed domain name.
Complainant adds that Respondent is not making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers, arguing that Respondent’s use of a domain name confusingly similar to the CPCHEM mark suggests sponsorship or approval by Complainant, negating any “fair use.” See Nelnet Business Solutions, Inc. v. Goldberger, D2013-0764 (WIPO June 13, 2013) (use of mark to suggest sponsorship or endorsement was not nominative fair use). Furthermore, Complainant submits that the disputed domain name is intended to deceive recipients of spear phishing emails, misleading them to believe that Respondent’s emails originated with Complainant.
Complainant alleges that the disputed domain name was registered and is being used in bad faith.
Complainant argues that at the time of registration, the registrant of the disputed domain name would have been aware of Complainant and its mark, because of its long and extensive reputation, and goodwill in its name and mark CPCHEM.
Complainant further submits that the disputed domain name was chosen and registered in bad faith, to be confusingly similar to Complainant’s mark by design, because soon after its registration, it was used in an attempted spear phishing attack, described above, where the whole point was to impersonate an employee of Complainant, with a <cpchem.com> email address.
Complainant argues that the evidence adduced in the Complaint, of such use of the disputed domain name in the spear phishing attempt on June 15 and 16 shows that the registrant was aware of Complainant when the disputed domain name was registered on June 15, 2020 and immediately proceeded to use the disputed domain name in bad faith. See AB Electrolux v. Piotr Pardo, WIPO Case No. D2017-0368 (“Respondent clearly registered and is using the disputed domain name in bad faith. Long after Complainant established its rights in its well-known trademark, Respondent acquired the disputed domain name and then engaged in creating fraudulent email addresses to use in a ‘phishing’ scheme against Complainant even going so far as to impersonate the CFO and send a wire transfer request to an employee of Complainant.”).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant produces a wide variety of goods including chemical additives, gasoline and diesel fuels, drilling fluids, raw plastic and plastic pipes and provides services in the petrochemical industry.
Complainant is the owner of:
• United States registered trademark CHCHEM, registration number 3,018, 435, registered on November 22, 2005 on the Principal Register for goods in international classes 1, 3, 4 and 17.
• Australian registered trademark CPCHEM registration number 1487517 (Trade Mark Number 2038198)registered on May 18, 2020 for goods in class 1.
• Hong Kong registered trademark CPCHEM, registration number 3049992832, registered on July 15, 2019 for goods in class 1;
• Peru registered trademark CPCHEM, registration number 00286219, registered on November 5, 2019 for goods in class 1;
• Philippines registered trademark CPCHEM, registration number 1487517, registered on November 14 2019 for goods in class 1;
• Kingdom of Saudi Arabia registered trademark CPCHEM, registration number 1440031343, registered on September 1, 2019 for goods in class 1.
Additionally, Complainant is the owner of and uses the domain name <cpchem.com> which it uses as an email address for its employees.
The disputed domain name was registered on June 15, 2020 and resolves to an inactive webpage. The uncontested evidence shows that it has been used by Respondent as an email address in a spear phishing scam against one of Complainant’s customers.
There is no information available about Respondent except for that provided in the Complaint, the Registrar’s WhoIs, and the information provided by the Registrar in response to the FORUM’s request for verification of the registration details of the disputed domain name in the course of this proceeding.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has adduced clear and convincing, uncontested evidence that it has rights in the CPCHEM trademark acquired through its portfolio of trademark registrations listed below and its long and extensive use of the mark as a trademark and service mark in the petrochemical and energy industries since 2001.
The disputed domain name consists of Complainant’s CPCHEM mark followed by the letter “i” and the gTLD <.com> extension.
Complainant’s mark is the initial, dominant and only distinctive element in the disputed domain name. The letter “i” adds no meaning or distinctive character in context and for the purposes of comparison the gTLD <.com> extension may be ignored in the circumstances of this Complaint as a domain extension, is recognized as a technical necessity for a domain name and serves no other purpose or meaning in the context.
This Panel finds therefore that the disputed domain name is confusingly similar to the trademark CPCHEM, in which Complainant has rights and Complainant has succeeded in the first element of the test in Policy ¶ 4(a)(i).
Complainant has made out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name arguing that
• Complainant has used its CPCHEM mark since at least as early as 2001, long before any use of “CPChem” or “cpchemi.com” by Respondent;
• Complainant obtained U.S. registration of its CPCHEM mark in 2005, prior to any relevant use by Respondent;
• Complainant has not licensed or otherwise authorized Respondent to use the CPCHEM mark;
• the WHOIS database indicates that Respondent did not register the disputed domain name until June 15, 2020;
• there is no evidence of any other use of “CPChem” or “CPChemi” by Respondent;
• Respondent is not in any way affiliated with Complainant;
• Respondent registered the domain name without Complainant’s knowledge or permission;
• Respondent registered the disputed domain name on the same day that one of its customers started to receive fraudulent emails using the disputed domain name address; Complainant has exhibited copy documents in an annex to the Complaint which shows that on June 15 and 16, 2020, an unknown person posing as an employee of Complainant sent an email, using the disputed domain name to one of Complainant’s customers claiming that there was a problem with a recent payment, stating that there were unpaid overdue invoices. In subsequent emails the fraudster sought to defraud the customer by directing it to call a telephone number unaffiliated with Complainant stating that their legitimate payments were not properly processed;
• Respondent did not use the disputed domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services because the disputed name resolves to an inactive webpage, and neither is there any evidence that Respondent has used, or has made demonstrable preparations to use, the disputed domain name for any legitimate noncommercial or fair use, without intent for commercial gain to misleadingly divert consumers.
It is well established that if Complainant makes out a prima facie case, the burden of production shifts to Respondent to prove his rights or legitimate interests in the disputed domain name. Respondent has failed to file any Response to the Complaint or provide any defense to Complainant’s allegations and so has not discharged the burden.
In these circumstances, this Panel must find that on the balance of probabilities Respondent has no rights or legitimate interests in the disputed domain name. Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
The disputed domain name is almost identical to Complainant’s very distinctive mark. It is improbable that the disputed domain name was chosen and registered without knowledge of Complainant, its reputation and goodwill and its almost identical domain name <cpchem.com>.
This Panel finds therefore that on the balance of probabilities the disputed domain name was chosen and registered with Complainant’s mark in mind, intending to take predatory advantage of Complainant’s reputation and its business relationships.
On the evidence adduced and described above, and in particular the email exchange between Respondent, impersonating Complainant, and one of Complainant’s customers, this Panel finds on the balance of probabilities that the disputed domain name was registered and used in bad faith, for the purposes of a spear phishing attempt on June 15 and 16, made immediately after it was registered on June 15, 2020, targeting and attempting to mislead one of Complainant’s customers.
As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has therefore succeeded in the third element of the test in Policy ¶ 4(a)(iii) and is entitled to the remedy requested in the Complaint.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cpchemi.com> domain name be TRANSFERRED from Respondent to Complainant.
______________________
James Bridgeman SC
Panelist
Dated: August 17, 2020
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